Case 1:16-cv-01278-RB-KK Document 17 Filed 08/30/17 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO Stanford Kelly Walsh, Petitioner, v. Civ. No. 16-1278 RB/KK BARBARA SEIDL SCHREIER, Warden, And HECTOR H. BALDERAS, Attorney General for the State of New Mexico, Respondents. MAGISTRATE JUDGE’S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION THIS MATTER is before the Court on Stanford Walsh’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1) (“Petition”), filed pro se on November 21, 2016. Having meticulously reviewed the pleadings and the record before the Court, the Court recommends that Mr. Walsh’s Petition be DISMISSED WITH PREJUDICE. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On June 14, 2012, a jury in the Second Judicial District Court of the State of New Mexico found Mr. Walsh guilty of two counts of aggravated battery against a household member, two counts of battery against a household member, one count of child abuse (1st offense), and three counts of contributing to the delinquency of a minor. (Doc. 15-1 at 1-5.) On August 3, 2012, the state trial court sentenced Mr. Walsh to a total term of imprisonment of eighteen years and five months, less two days, but suspended six years and five months. (Id. at 6.) The state trial court issued its judgment and sentence on August 15, 2012. (Id. at 1.) The following day, Mr. Walsh’s counsel moved to withdraw stating that the attorney/client relationship had deteriorated to the point that she could no longer effectively represent him. Case 1:16-cv-01278-RB-KK Document 17 Filed 08/30/17 Page 2 of 7 (Doc. 15-1 at 17.) However, Mr. Walsh’s counsel had advised him before August 16, 2012, that she would be withdrawing from his case, that he had “30 days from the date that the judg[]ment and sentence is filed with the District Court to file an appeal,” and she encouraged him to contact the Appellate Division of the Public Defender’s Office and provided their contact information. (Id. at 18.) Thus, Mr. Walsh filed a Notice of Appeal in the Second Judicial District Court pro se on August 16, 2012. (Id. at 19.) He also filed a Notice of Appeal pro se in the New Mexico Court of Appeals on August 29, 2012. (Id. at 52.) The trial record was prepared on November 28, 2012 (id. at 92), but no docketing statement was ever filed in the state Court of Appeals. (Id. at 52.) As such, the state Court of Appeals issued an Order to Show Cause, and when Mr. Walsh failed to respond, dismissed the appeal on March 29, 2013. (Id. at 52-53.) Mr. Walsh did not file a petition for certiorari with the New Mexico Supreme Court. On August 14, 2014, two years after judgment was entered in his criminal case, Mr. Walsh filed a “Motion for Habeas Corpus Relief” in the Second Judicial District Court, in which he argued that the trial court erred in allowing his defense counsel to withdraw before filing a notice of appeal and request for appellate counsel. (Id. at 36.) The Second Judicial District Court summarily dismissed Mr. Walsh’s motion on October 10, 2014, finding that Mr. Walsh was timely notified of his right to appeal and advised to contact the Public Defender’s Office and therefore no violation of the constitution or laws of New Mexico or the United States occurred. (Id. at 78.) Mr. Walsh did not file a revised petition, and the petition was dismissed pursuant to NMRA 5-802(G)(1). (Id. at 92.) Mr. Walsh did not appeal. (Id. at 92-93, Doc. 1 at 5.) In his 2254 Petition, Mr. Walsh has raised three grounds for relief. Specifically, Mr. Walsh claims that: (1) his due process rights were violated under the 14th Amendment of the 2 Case 1:16-cv-01278-RB-KK Document 17 Filed 08/30/17 Page 3 of 7 United States Constitution, because the police report associated with his criminal case was procedurally invalid, and therefore he was prosecuted with “insufficient evidence” (Doc. 1 at 6- 7, 14); (2) the trial court erred in allowing his defense counsel to withdraw before filing a Notice of Appeal and docketing statement, and failing to appoint substitute appellate counsel (id. at 7-8, 14); (3) he was subjected to double jeopardy by being charged with: (a) aggravated battery against a household member and battery against a household member for the same acts, and (b) aggravated battery against a household member, aggravated assault against a household member, and battery against a household member for the same acts. (Id. at 10-11, 14.) Mr. Walsh admits as to each of his three claims that he did not raise the issue on appeal in state court, and that he did not raise the issues outlined in Claim 1 or 3 in a state habeas petition. (Id. at 7, 9, 11.) As to Claim 2, he states that while he did file a petition for habeas corpus relief on the issue, he did not appeal from the summary dismissal because he “was unaware of his right to do so.” (Id. at 9.) The Government responds that Mr. Walsh’s current 28 U.S.C. § 2254 petition should be dismissed with prejudice because it is time barred pursuant to 28 U.S.C. § 2244(d)(1) and he is not entitled to equitable tolling under 28 U.S.C. § 2244(d)(2), and he failed to exhaust his state court remedies prior to filing pursuant to 28 U.S.C. § 2254(b)(1)(A). (Doc. 15 at 7-12.) Mr. Walsh filed two motions to amend his petition on June 28, 2017, and July 6, 2017, respectively. (Docs. 13, 14.) The undersigned denied his motions to amend, because Mr. Walsh does not assert any new claims or theories in his motions to amend. (Doc. 16 at 1-2.) Mr. Walsh also requested the Court to appoint counsel to represent him in this proceeding; however, his request was denied because there is no constitutional right to counsel in a habeas proceeding, and a court has discretion not to appoint counsel when, as the undersigned determined, the merits of 3 Case 1:16-cv-01278-RB-KK Document 17 Filed 08/30/17 Page 4 of 7 the petitioner’s claims are questionable. (Doc. 16 at 2.) Mr. Walsh did not file a reply brief after the Government filed its answer on July 7, 2017, and this matter is now before the Court for recommended disposition. D.N.M. LR-Civ. 7.1(b). III. ANALYSIS A. MR. WALSH’S MOTION IS UNTIMELY 28 U.S.C. § 2244(d) imposes a one-year limitation period for state prisoners to file a 28 U.S.C. § 2254 petition. The limitation period begins to run, in relevant part, from “the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A)). Final judgment was entered in Mr. Walsh’s criminal case on August 15, 2012. (Doc. 15-1 at 92.) The New Mexico Court of Appeals dismissed Mr. Walsh’s appeal on March 29, 2013. (Id. at 53.) Mr. Walsh did not petition for a writ of certiorari and his judgment thus became final for purposes of § 2244(d) on April 29, 2013. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (finding that a petitioner’s “judgment bec[o]me[s] final when his time for seeking review with the State's highest court expire[s].”); and NMRA, Rule 12-502(B) (providing that a petition for writ of certiorari must be filed within 30 days after final action by the Court of Appeals). Although Mr. Walsh eventually filed a state habeas petition on August 14, 2014, that petition did not toll the one-year limitation period for filing a § 2254 petition, which limitation period expired on April 29, 2014. The present § 2254 petition was filed on November 21, 2016, nearly two and a half years after the limitation period expired and four years after judgment was entered in the criminal case. Furthermore, Mr. Walsh did not initiate state post-conviction proceedings until August 14, 2014,1 four months after the one-year limitation period had expired. Although the one-year 1 Mr. Walsh claims that he submitted his habeas petition to the state court on December 9, 2013, but the record does not support this claim. (Doc. 1 at 3; Doc. 15-1 at 40, 87-93.) The undersigned notes that Mr. Walsh previously 4 Case 1:16-cv-01278-RB-KK Document 17 Filed 08/30/17 Page 5 of 7 limitation period may be tolled during the pendency of state post-conviction proceedings pursuant to § 2244(d)(2), a state petition filed after the expiration of the one-year limitation period does not toll the limitations period. See Gunderson v. Abbott, 172 F. App’x 806, 809 (10th Cir. 2006) (unpublished); Alvarado v. Smith, No. 17-CV-00266-RJ-GJF, 2017 WL 3267747, at *2 (D.N.M. July 31, 2017) (“Although Petitioner submitted a state habeas petition after the expiration of the one-year limitation period, Petitioner's state habeas petition does not toll the limitation period.”). Therefore, Petitioner’s § 2254 petition is untimely unless the doctrine of equitable tolling applies. “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Holland v.